The Common Law | Page 8

quasi
material conception of legal obligations as binding the offending body,
which has been noticed, would perhaps explain the well-known law of
the Twelve Tables as to insolvent debtors. According to that law, if a
man was indebted to several creditors and insolvent, after certain
formalities they might cut up his body and divide it among them. If
there was a single creditor, he might put his debtor to death or sell him
as a slave. /3/
If no other right were given but to reduce a debtor to slavery, the law
might be taken to look only to compensation, and to be modelled on the
natural working of self-redress. /4/ The principle of our own law, that
taking a man's body on execution satisfies the debt, although he is not
detained an hour, seems to be explained in that way. But the right to put
to death looks like vengeance, and the division of the body shows that

the debt was conceived very literally to inhere in or bind the body with
a vinculum juris.
Whatever may be the true explanation of surrender in connection with
contracts, for the present purpose we need not go further than the
common case of noxoe deditio for wrongs. Neither is the seeming
adhesion of liability to the very body which did the harm of the first
importance. [15] The Roman law dealt mainly with living creatures,--
with animals and slaves. If a man was run over, it did not surrender the
wagon which crushed him, but the ox which drew the wagon. /1/ At
this stage the notion is easy to understand. The desire for vengeance
may be felt as strongly against a slave as against a freeman, and it is not
without example nowadays that a like passion should be felt against an
animal. The surrender of the slave or beast empowered the injured
party to do his will upon them. Payment by the owner was merely a
privilege in case he wanted to buy the vengeance off.
It will readily be imagined that such a system as has been described
could not last when civilization had advanced to any considerable
height. What had been the privilege of buying off vengeance by
agreement, of paying the damage instead of surrendering the body of
the offender, no doubt became a general custom. The Aquilian law,
passed about a couple of centuries later than the date of the Twelve
Tables, enlarged the sphere of compensation for bodily injuries.
Interpretation enlarged the Aquilian law. Masters became personally
liable for certain wrongs committed by their slaves with their
knowledge, where previously they were only bound to surrender the
slave. /2/ If a pack-mule threw off his burden upon a passer-by because
he had been improperly overloaded, or a dog which might have been
restrained escaped from his master and bit any one, the old noxal action,
as it was called, gave way to an action under the new law to enforce a
general personal liability. /3/ Still later, ship-owners and innkeepers
were made liable [16] as if they were wrong-doers for wrongs
committed by those in their employ on board ship or in the tavern,
although of course committed without their knowledge. The true reason
for this exceptional responsibility was the exceptional confidence
which was necessarily reposed in carriers and innkeepers. /1/ But some
of the jurists, who regarded the surrender of children and slaves as a
privilege intended to limit liability, explained this new liability on the

ground that the innkeeper or ship-owner was to a certain degree guilty
of negligence in having employed the services of bad men? This was
the first instance of a master being made unconditionally liable for the
wrongs of his servant. The reason given for it was of general
application, and the principle expanded to the scope of the reason.
The law as to ship-owners and innkeepers introduced another and more
startling innovation. It made them responsible when those whom they
employed were free, as well as when they were slaves. /3/ For the first
time one man was made answerable for the wrongs of another who was
also answerable himself, and who had a standing before the law. This
was a great change from the bare permission to ransom one's slave as a
privilege. But here we have the history of the whole modern doctrine of
master and servant, and principal and agent. All servants are now as
free and as liable to a suit as their masters. Yet the principle introduced
on special grounds in a special case, when servants were slaves, is now
the general law of this country and England, and under it men daily
have to pay large sums for other people's acts, in which they had no
part and [17] for which they are